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High Court of Solomon Islands |
HIGH COURT OF SOLOMON ISLANDS
Civil Case No. 245 of 1990
FANIDUA KIRITE’E
-V-
ROCKY SUGUMANU
High Court of Solomon Islands
(Palmer J.)
Hearing: 11th February, 1997
Judgment: 7th April, 1997
C. Ashley for the Applicant/Plaintiff
T. Kama for the Respondent/Defendant
PALMER J.: Judgment: This is an application by Notice of Motion for Judgement pursuant to Order 42 Rule 4 of the High Court (Civil Procedure) Rules, 1964 on the following terms:-
That orders be made as follows:
5. Interests in the judgement debt be assessed from 3 March 1994.
6. Costs be paid by the defendant.
7. Any further order the Court deems fit to make.
The Applicant contends that customary ownership of FASSIFAU LAND as between NOWAE and RAMOITOLO had been settled in law in a court case in 1968 (the "1968 Case") and won by Ramoitolo. The Respondent, being directly related to Nowae (this is not in dispute), accordingly is bound by that decision. He therefore does not have any claim of right over the said land which had been sold by Takawane (Ramoitolo’s son) to him in 1971 for valuable consideration.
The contention of the Respondent essentially can be summarised as follows. He disputes that there was a valid sale in custom to the Applicant in 1971 and that even if there had been a sale that it was not done by the true land-owner. He also seeks to argue that the boundary description in the 1968 Case is ambiguous. The Respondent also disputes the purchase of the said property by the Applicant as opposed to a purchase by the Jehovah’s Witnesses. He alleges that the property had been sold to the Jehovah’s Witnesses and not to the Applicant in his personal capacity.
The crucial issue for determination is whether the decision of the Native Court in Civil Land Case No. 29/68 covered the area of Fassifau land as well and settled once and for all the question of ownership as between Nowae and Ramoitolo.
The Applicant claims that this had been done, whilst the Respondent argues otherwise.
I will now turn to consider the effect of the 1968 Case. This is the second or third time that the decision in this case will have come up to this court for consideration. In the case Rocky Tisa -v- Billy Farobo & Clerk to Malaita Customary Land Appeal Court, (High Court) Civil Case No. 254 of 1991, judgment delivered on 27th November, 1992, a similar issue as to the boundary description in the 1968 Case was raised concerning ownership of an area of land called ADAKOA, which Billy Farobo ("First Respondent") had purchased from Ramoitolo; (owner of that land). The First Respondent raised the defence of res judicata on the ground inter alia, that the question of ownership of the said land as between Nowae Doe and Ramoitolo had already been determined in that Native Court Case No. 29 of 1968. The Customary Land Appeal Court of Malaita had found in favour of the First Respondent.
On appeal to the High Court, the Appellant argued that Nowae Doe and Nowae Te’e had control over two different lands; Latea land and Fulibae land, and therefore do not necessarily have the same claims over the said disputed area of land. The High Court however ruled against the Appellant on the ground that the claim of Nowae Te’e was identical to the claim of Nowae Doe and therefore was bound by the decision of the Native Court in Civil Case No. 29 of 1968("the 1968 Case").
The brief facts of the 1968 Case are as follows. The claim had been initiated by Nowae Doe, ("Plaintiff") on behalf of his line, ( which he described as including Olosua and Ogua), over what appears to be a purchase or sale, of a piece of land referred to as Adakoa Land by Ramoitolo (the defendant in that case). There is a copy of a sketch map provided as to the location of the said land: see bundle of documents marked exhibit "FKA", at the last page, annexed to the affidavit of Fanidua Kiritee filed on 8th February, 1995. That sketch map appears to have been generally agreed to and accepted by the parties as to the approximate locations of various land marks and boundaries of the areas in dispute between the parties.
The Plaintiff had claimed that Adakoa Land was part of FULIBAE AND MARADE LAND ( obviously a bigger area of land alleged to encompass Adakoa Land as well), whilst the Defendant on the other hand, had claimed that Adakoa Land was within LATEA LAND ( again a bigger area of land claimed by the Defendant to encompass Adakoa Land).
In determining the ownership of Adakoa Land, the Native Court inevitably had to hear customary evidence pertaining to inter alia, ownership and the boundaries of those two bigger land areas ( Fulibae and Marade Land on one hand and Latea Land on the other). That decision is pertinent to the issues raised in this case because it will directly affect the vital question raised in this Notice of Motion for Judgment as to whether Fassifau Land is in Fulibae land or in Latea land; bearing in mind that the claim of the Defendant here is derived from Nowae Doe and Nowae Tee.
It is vital therefore for this Court to consider in detail the boundary description in the 1968 Case. The description of the Native Court read as follows:
"It looks as Nowae must own Kwakwali north side and Ramoitolo own the south side Marade and Uka.
. . . so the Court divide the land between them. There is a Valley between Kwakwali and Tolo’s Village follow the Valley from Lalinali river up the stream up to where the group of nali nut trees are and follow the main bush road, bottom is toward the Suu river, the land paid at Gwaufala must be mark for Leanafaka’s people. The properties of Olosua coconut and Alata for fishing remain unchange. Only the land belong Tolo as said in previous Cases."
In Civil Case No. 254 of 1991, this Court considered the issue of the boundaries above and made the following conclusion:
"The Local Court had already ruled on this claim. It made a boundary separating the ownership of Latea and Marade land from Fulibae land. The Fulibae’s tribe claim is bound by the decision of the 1968 case."
In a separate ruling however, made by this court on an application to set aside a summary judgment, which had been obtained by the Plaintiff on 3rd March, 1994, in this case, one of the arguments put forward by the Defendant in support was that the boundary description made by the Native Court in that 1968 Case, in particular the reference to the "Su’u river" was ambiguous and therefore did not settle the question of the boundary between Fulibae Land and Latea Land. At page 3 of the judgement the court made the following observations:
"The parties are in agreement as to the boundary description commencing from the "valley" between Kwakwali and Tolo’s village, right up to the main bush road. They disagree however, on two matters. First, is the reference in the description of the boundary, "bottom is toward the Su’u river". Secondly, they disagree as to the boundary from the ‘Valley’ downwards (or in an easterly direction).
The Applicant says that the reference in the description of the boundary "bottom is toward the Suu river" can only be logically construed as referring to the Adakoa water at the bottom of the land in dispute, for the reason that the original area of land which caused the dispute and which resulted in that Local Court case, was a piece of land sold to Maniliu and located near Adakoa. The Applicant therefore says that the above construction of that description will make sense of the whole proceedings.
The Respondent on the other hand submits that the reference to the description "bottom is toward the Su’u river" must be read in its context, as following or continuing on from the main bush road. It therefore couldn’t be a reference to the Adakoa water, which is way down to the east of that boundary. He submits that it could only be a reference to the river which connects to the main bush road (the Rade River); that is, the bottom of the main bush road is toward that river.
With respect to the submissions of both parties, I must admit that the description of those two parts of the boundary is ambiguous. To add to the uncertainty, there is no identifiable river called ‘ Suu river’.
The boundary description therefore is clear and identifiable only as far as it commences from the "Valley" between Kwakwali and Tolo’s village, right through to where the main bush road is. Beyond the "Valley" and the main bush road, the boundary description is ambiguous.
. . . Apart from the above specific references to the boundaries descriptions of land other land areas, there is hardly any reference or mention as to which of the two parties own Fassifau land in custom. The boundary descriptions, as pointed out earlier, do not make clear on which side of the customary land boundary, Fassifau land is located. What this simply means is that, the question of customary land ownership over Fassifau land, as between Ramoitolo and Nowae, has not yet been litigated upon and finally settled. The matter is therefore still open for either party to take the matter to the Chiefs for hearing under the Local Court Amendment Act 1985, and before the courts, where the chiefs finding is not accepted. The question of customary ownership over Fassifau land at this point, remains a live issue, If ownership is eventually determined in favour of Ramoitolo, then the Respondent/Plaintiff can continue to pursue his claim on this action. If it is determined in favour of the Applicant/Defendant, then that would seem to be the end of this action."
(see page 4, last paragraph)
The Court then concluded that there was a triable issue raised in the affidavit of merit, and set aside the summary judgment.
Mr Ashley for the Applicant now comes to this court seeking to argue that the 1968 Case had in fact settled the issue of ownership over the area on which Fassifau land is located and that the Respondent therefore had no defence to the Applicant’s claim. He urged the Court to re-consider its observations and rule in favour of his client.
The starting point must obviously be the conclusion reached by this court in Civil Case No. 254 of 1991 (High Court) [ibid], in which it accepted that the Native Court had already made a clear boundary separating the ownership of Latea and Marade land from Fulibae land as between Nowae Doe and Ramoitolo. That decision by this Court sets the stage for re-consideration of the issues sought to be raised by the Defendant in this case.
Secondly, the comments of this court in the ruling made on 10th March, 1995, must be viewed in their context as observations of the court in an interlocutory application to set aside summary judgment and not necessarily as final and conclusive findings. Also it should be borne in mind that the final and conclusive findings of the Court in Civil Case No. 254 of 1991 were not brought to the full attention of the Court when it considered the issues raised by the Defendant.
Thirdly, I have now had the opportunity to re-consider the observations made, in the light of this application and also in the light of this court’s judgment in Civil Case No. 254 of 1991 and come to the conclusion that the decision of the Native Court in the 1968 Case could not be clearer and that it is not open to this court to try and re-define or re-write what the learned Justices of that Native Court had said.
In this judgment, I will take a re-look at the judgment of the Native Court and address the ambiguities raised by the Respondent.
The first relevant part of the judgement of that 1968 Case states as follows:
" . . . it seem that Nowae the plaintiff must own the other side of the land, and Ramoitolo the other side. It looks as Nowae must own Kwakwali north side and Ramoitolo own the south side Marade and Uka."
It is important to appreciate that the Native Court had established an imaginary line dividing the boundary between the two lands. What that imaginary dividing line is referred to in turn in the latter part of the judgment as follows:
"There is a valley between Kwakwali and Tolo’s Village follow the Valley from Lalinali river up the stream up to where the group of nali nuts trees are and follow the main bush road, bottom is toward the Suu river, the land paid at Gwaufala must be mark for Leanafaka’s people."
The main contention of the Respondent is that the Lalinali river itself is not part of the boundary dividing the two lands together. It appears that his argument is that the boundary actually commences from the Adakoa Water to the point where the "Valley" meets the Lalinali river, and continues on up the Valley to the nali nut trees and on to the main bush road. The reference to the "Suu river" in the description of the boundary they argue, is a reference to the "Suu Naki River". Mr Kama seeks to argue that the description of the boundary by that Native Court is not clear and therefore the matter should be referred to the Local Court for clarification.
With respect, I disagree. The Native Court in its description of the boundary did not say that it commences from the point where the "Valley" meets the Lalinali River, or suggest that it commenced from the Adakoa Water or from the Suu Naki River. It merely said " . . . follow the valley from Lalinali River. . .". This with respect, must be interpreted to mean by necessary implication, that the Lalinali River is itself one of the boundaries to the two areas of land which the Native Court had intended to divide. It couldn’t have been a reference to a point where the "Valley" meets the Lalinali River. The type of words used forbade any other interpretation to be adopted. There is a big difference between a point where the Lalinali River meets the Valley as opposed to a general description making reference to the Lalinali River. If the Native Court had intended to refer to the spot where the "Valley" meets the Lalinali River as a boundary point or marker, then it would have said so clearly.
It appears that the claim of Nowae in the Native Court had been that the area of Fulibae land stretched all the way down to Adakoa Water and thereby included Adakoa land (the area of land in dispute in that case). Had the Native Court accepted the claim of Nowae, then it would have found that Adakoa Land was inside of Fulibae land. The Native Court however found in favour of Ramoitolo; by making a clear boundary between Fulibae Land and Latea Land and making it clear that Ramoitolo was the owner of Adakoa Land. That part of the decision of the Native Court read as follows:
"The properties of Olosua coconut & Alata for fishing remain unchange, Only the land belong Tolo as said in previous cases."
Olosua was one of the witnesses for Nowae in the Native Court. He claims in his evidence to have received the land of Adakoa from Nowae: see page 1 of the record of proceedings of the 1968 Case. The Native Court however made it quite clear, that Adakoa Land, the subject of the dispute between the parties, belonged to Ramoitolo. That finding of the Native Court is consistent with the boundary description dividing Fulibae land from Latea land as fixed at inter alia, Lalinali River.
Secondly, the reference " . . . bottom is toward the Suu river. . . . ", could not be a reference to the Suu Naki River as sought to be suggested by the Respondent. That reference was made in the context of the boundary continuing on from the "main bush road ". In other words, the description "bottom is toward the Suu river " must be construed in the context of the preceding words; " main bush road ". That is, the bottom of that main bush road is toward the Suu River. It just wouldn’t make sense to jump from the " main bush road " back to a point where the "Valley" meets the Lalinali River and say that the description " bottom is toward the Suu river " commences from that point down to Suu Naki River. If that were the case, then where does the boundary continue on there-after from the "main bush road"? I note on the sketch plan marked "FK11" attached to the affidavit of Fanidua Kirite’e filed on 20th September, 1996, that the boundary does continue on from the main bush road to a River called Suu and which in turn eventually ends up at Kada, the same place where the Lalinali River also ends. This is all consistent with the findings of the Native Court in its judgment. The area outside of the boundary description made by the Native Court obviously must be Latea land; this is the side described as the South Side Marade and Uka.
According to the boundary description of that 1968 Case, Fassifau Land is clearly located inside Latea Land. Ownership of Latea Land having been established as between Ramoitolo and Nowae, the declaration sought in paragraph 1 of the Notice of Motion, that Fassifau Land is within the land originally owned by Ramoitolo, must be granted in his favour.
The second declaration sought relates to the sale of Fassifau land to the Applicant. Some suggestion has been made that there was no valid sale to the Applicant, but the evidence before this court showed clearly that there had indeed been a sale of the said land to the Applicant by Takawane in the sum of $120.00 ( see affidavit of Fanidua Kirite’e filed on 6th December, 1996 at paragraph 2; and see annexure "FK1" at pages 2 and 3; also see statement of Soai at page 4 of same annexure "FK1", and statement of Takawane at page 5 of same annexure).
Takawane and Soai are both sons of Ramoitolo. Annexure "FK1" is a copy of the record of proceedings and decision of the Malaita Native Court in Civil Case No. 8/73, between Fanidua Kiritee (Plaintiff) and Soai (Defendant). The dispute in that case arose from a claim by the Defendant, (Soai) and Futai (same person called Sanga Futai who swore an affidavit filed on 10th February, 1997; referred to in the record of court proceedings at pages 5-7), that the area bought by Fanidua was too big and as a result they had sought to have the said area reduced. At page 3 of the record of proceedings, this is what the Plaintiff said about the actions of the Defendant:
"The 14th November, 1972, Futai went passed and put note for me at Taba’a when I was there. He said to talk abut this piece land again. I also wrote ask note for him to say, If this land is yours, you will take Takawane and Soai in court but not me. I have no right to talk about that land. After I went to Ataa and came home I saw the spearline been reduced without the Court. I said must be Soai went with Futai to reduce this spearline."
The statement of the Defendant as to the subject of the dispute was similar. At page 4 of the records, this is what he states:
"When Futai heard they paid this land he send words to Fanaiasi at Aligegeo and he came across to tell us. He said, Futai did not agree. With this land you sold for Fanaidua Kiritee, Why you steal us. Why don’t you tell us every one to talk about. If I want, I will take both of you in court because you sell this land without us. This word my uncle said was true. After that Futai come home and gathered land Committee and they talk about this land before they went and put up the new spearline."
According to the statement of Soai above, it is clear that both he and Futai were involved in seeking to have the area of Fassifau land reduced. The original area of Fassifau land as sold by Takawane was obviously a bigger and clearly defined area. This has not been disputed. In the record of proceedings of the Land Case No. 8/73, at page 5, Takawane made the following statement (as recorded):
"My words like this. The payment I took for the land was true. Fanidua gave it. The money took for this land is mine already. Futai without me and reduce the spearline again."
The Native Court decided in favour of the Plaintiff (Fanidua Kiritee). It held that the boundary of the said land must follow the original boundary agreed upon between Fanidua Kiritee and Takawane. No appeal has been lodged against the decision of the Native Court and accordingly the Defendant (Soai) is bound by that decision. It appears that this may also include Futai whose claim in essence was more or less similar to that of the Defendant.
The court case in 1973 is quite significant in that whilst it sought to address the question as to the area of Fassifau land, it also brought out into the open the fact that there were a number of land-owners who may have not agreed with the sale by Takawane to Fanidua Kiritee. One of these obviously was Futai. Since 1973 to the present, however, no one including Futai, had sought to challenge whether Takawane had the power or authority to sell the land to Fanidua Kiritee. Twenty-four years is quite a long time to remain silent about any such grievances or claims. It is quite revealing to note as well that when an opportunity did present itself, in 1973, the right or power of Takawane to make the sale was not raised in issue. The only issue raised and argued before the Native Court was on the area of land sold; thus indirectly recognising it seems, the power or authority of Takawane, to make that sale in the first place. That there was a sale made to Fanidua Kiritee by Takawane, in my respectful view cannot be denied. As to any suggestions that it may have been invalid, with respect, I find little evidence to support such view.
One of the suggestions sought to be put before this court in the affidavit of Rocky Sugumanu filed on 7th February, 1997 was that the boundaries of Latea and Fulibae land had already been determined in a case in 1965 between Alasa’a v. Ramoitolo (hereinafter referred to as the "1965 Case"). A copy of the court records in that case have been filed as annexure "D" in the affidavit of Rocky Tisa Sugumanu filed on 15 February, 1995.
It was suggested by Mr Sugumanu at paragraph 7 of his affidavit, that there were two issues which the Native Court had to resolve in that case. The first related to the issue of leadership over Latea land; and the second related to the question of boundaries of Latea land, Fairu land (owned by Alasa’a to the south) and Fulibae land (owned by Nongwaedoe to the north).
Unfortunately that is not entirely correct, for the facts in that case speak for themselves. The dispute in that case related to the boundary between Latea land and Fairu land. Fairu land was claimed by Alasa’a (the Plaintiff) and Latea land claimed by Ramoitolo (the Defendant). Questions of ownership of those lands by the respective parties was not in dispute. The sole dispute was on the boundary dividing those two lands. The decision of the Native Court read as follows:
"The boundary is set at the midst of Council H.Q. & Air Strip. Ramoitolo on the north and Alasa’a on the south side. Court found out that these two people even olden days they used to live together and intermarried now the court cannot decide but each should see for his side Boundary set on."
In the affidavit of Rocky Sugumanu filed on 7th February, 1997, at paragraph 6, he deposed that the boundaries of Latea and Fulibae land had been determined in that 1965 Case. See also his affidavit filed on 15 February, 1995 at paragraph 15. Unfortunately, that is not correct. The dispute in that case was not on the boundary between Fulibae and Latea land but on the boundary between Fairu land and Latea Land. That 1965 Case therefore is distinguishable on its facts; whereas the 1968 Case was specifically on the boundary between Fulibae land and Latea land and as between Nowae and Ramoitolo.
Another suggestion made by the Defendant was that the sale of the said land had been made to the Jehovah’s Witnesses to build a church and office headquarters and not to the Plaintiff directly. The Plaintiff accordingly does not have any personal interest, inter alia, in the said property. Unfortunately there is little evidence to suggest that the Jehovah’s Witnesses had bought the said land. In the affidavit of Mr Sanga Futai filed on 10th February, 1997, at paragraph 2, he deposed that he had enquired at the headquarters of the Jehovah’s Witnesses in Honiara but had been told that the church had not purchased any land in East Kwara’ae, Malaita. No affidavit from the Jehovah’s Witnesses has also been filed on this issue.
The only affidavit evidence of a purported sale of the land to the "church" was that of Malachi Kailiu. At paragraph 1-3, he deposed
that he had been approached by the Applicant to negotiate with the land-owners for the purchase of the said land to the "church".
The price agreed to by the land-owners was $120.00 (Australian currency). At paragraph 4 he deposed that one of the land-owners, Takawane, demanded that he be paid the same day. As a result of this, he (Malachi Kailiu) gave one red shell money (called Baniauono-worth
$60.00) and $10.00 as part payment to Takawane and Soai. He then told the Applicant to pay the balance at a later date. This purported
payment by Malachi however has been expressly denied by the Applicant (see statement attached to affidavit of Fangidua Kiritee filed
on 10th February, 1997) and Soai (see statement attached to affidavit of Achan Soai filed on 11th February, 1997).
Also see statement of Takawane as contained in the record of proceedings in Land Case No. 8/73 (supra). No mention was made in his
statement regarding any payment from Malachi Kailiu. The only payment acknowledged was that from Fanidua Kiritee.
The admission by Malachi Kailiu that Takawane is one of the landowners is quite significant. At least it goes to support the case of the Plaintiff that a valid purchase had been made from a correct land-owner by the name of Takawane. What is clear is that Malachi Kailiu, the father of the Defendant in this case openly acknowledged the rights or authority of Takawane by himself paying him as he claims, one red shell money and $10.00. Whether this was actually done or not, what is important to appreciate is that he had recognised in his affidavit the authority of Takawane as a landowner.
Further, at paragraph 8 of his affidavit, Malachi Kailiu repeats his recognition of the authority of Takawane as a land-owner:
"Due to the fact that I paid for the land intended for the church which did not eventuate Takawane agreed that I would take possession of the Kaukauna Aha portion of the land. In accordance with custom practice of Malaita the Plaintiff live at the land under my authority as the purchaser."
[Emphasis added]
Whilst it is appreciated that the context in which the claim of Malachi Kailiu had been made were on the assumption that the land had been purchased for the Jehovah’s Witnesses, it did not detract from his recognition of Takawane as a land-owner. In paragraph 8 above, after realising that the purported sale to the "church" did not eventuate, he sought to place reliance on the fact that he had made part payment for the said land to Takawane and that this had been recognised by Takawane.
Whilst it may be disputed whether Malachi Kailiu and the Plaintiff had each contributed to the purchase of the said land together for and on behalf of the "church", or separately, one thing is clear, that the "church" does not acknowledge in any way having purchased any such land and does not wish to take issue with such payments. The argument sought to be introduced therefore that the purchase by the Plaintiff should be rendered void by this Court because it had been made under the guise that it was for the church cannot be substantiated and must be dismissed. The balance of the evidence on this point is weighted in favour of the Plaintiff.
I am satisfied the sale of Fassifau Land by Ramoitolo to the Plaintiff in 1971 has never been challenged as invalid in custom and there is no suggestion or evidence whatsoever before this Court to support such suggestion. In the circumstances, I am satisfied the sale was a valid sale in custom and that lawful title vests on the Plaintiff. I so declare.
As for the order sought in paragraph 3 of the Notice of Motion, I am satisfied it is not necessary to answer in view of the findings made by this Court.
As to paragraph 4, judgment should be entered against the Defendant with damages to be assessed, including interest.
I am satisfied costs of the Plaintiff should be borne by the Defendant.
ORDERS OF THE COURT:
THE COURT.
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